New Data on the Processing of Aggravated Felons

An estimated 300,000 non-citizens have been ordered deported from the United States during the last decade and a half after they had been categorized as "aggravated felons" under a complex, obscure and in some cases controversial procedure, according to data obtained by the Transactional Records Access Clearinghouse (TRAC).

While many of those classified as aggravated felons and then ordered out of the country have previously been convicted of very serious crimes, this provision has been of concern to various immigration rights groups. The concern arises in part because in some cases the offenses upon which the aggravated felony decisions are based do not appear to be as serious as suggested by the label. For example, an individual can be declared an "aggravated felon" on the basis of a conviction on "misdemeanor" charges such as shoplifting. See the sidebar referencing an earlier TRAC report.

Aggravated Felonies and Deportation

A primary purpose of U.S. immigration laws is to control the number and type of non-citizens who can be in the country. Among other things, these laws outline conduct that can disqualify non-citizens from getting permission to enter or remain in the U.S.
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Another concern of the immigration groups is that the closed nature of the decision making process — particularly for those matters handled administratively — means that determining the fairness of how specific cases are being decided frequently is very difficult.

Under U.S. immigration law and related court decisions, the legal sanctions for being classified an aggravated felon are much more severe than for other types of removal orders. Not only are they deported, but they are permanently barred from ever entering the U.S. again. As discussed in another TRAC report, available data suggest that persons charged with aggravated felonies often have been in the country a long time — the average is 15 years for those appearing in Immigration Court — and many may be permanent legal residents of the U.S. or have family members who are U.S. citizens.

Trends in Overall Counts

Over the last decade and a half, the number of individuals subject to removal as an "aggravated felon" — while estimated to total around 300,000 for the whole period — has been increasing over time. In FY 1992, 10,303 removal orders for individuals classified as aggravated felons were issued by the federal government. By FY 2006, however, the orders had more than doubled, growing to 23,065. Because 2006 figures are preliminary and do not yet include all orders actually entered, the ultimate total is likely to be even higher. See Figure 1 and table.

The previously unavailable information about the true extent of the government's use of the aggravated felony procedure is now possible partly as result of extensive data just provided the Transactional Records Access Clearinghouse (TRAC) by the Executive Office of Immigration Review (EOIR) under the Freedom of Information Act (FOIA). Also essential to the new insights about the process was much more limited information recently made available as a result of TRAC's request to Immigration and Customs Enforcement (ICE), a division within the Department of Homeland Security (DHS).

Administrative versus Immigration Court Orders

According to this recently released data, in FY 2006 slightly over half (55%) of all removal orders under aggravated felony provisions were administrative orders issued by employees of Immigration and Customs Enforcement (ICE) in the Department of Homeland Security (formerly the Immigration and Naturalization Service (INS)). Under this streamlined procedure, ICE is responsible for all steps in the process, from apprehension and detention to issuing the order and deporting the individual.

The remainder (45%) were from removal orders issued by an immigration judge following proceedings in the Immigration Court. Although the terms court and judge are used, this is an administrative court presided over by a Department of Justice employee who ultimately answers to the Attorney General. While neither the court nor the judge is part of the judiciary, the proceedings are court-like in nature. Unlike the streamlined process described above where ICE handles all phases of the procedure, here ICE formally charges the alien or permanent legal resident in Immigration Court and is required to substantiate these charges before the immigration judge.

While the number of removal orders issued under aggravated felony provisions has grown over the past five years as shown earlier in Figure 1, there has also been a shift in the government's reliance on the two differing procedures. During FY 2002 right before the reorganization of INS with the formation of the Department of Homeland Security, 43% of all removal orders were issued administratively by INS. This has grown steadily — in FY 2003 and 2004 (44%), in FY 2005 (53%) and FY 2006 (55%). See Figure 2 and table.

Data on the number of administrative orders prior to 2002 has not been released so it is not possible to determine the trends for prior periods. It is the case that the number of new cases that INS filed in Immigration Court as well as the number of removal orders issued by the Immigration Court on these filings peaked in 1997 and has been steadily declining since then after authority for issuing expedited administrative orders was passed by Congress.

Although the complex process for handling the so-called aggravated felons has over the years been generally upheld by various federal courts, the Supreme Court several weeks ago in the case of Lopez vs. Gonzales issued a decision rejecting one aspect of ICE's expansive interpretation of the law. While the decision did not end ICE's broad authority to process these cases, it did restrict somewhat the expansive definition of the scope of offenses that fell within aggravated felony provisions.